Appointment of Judges of Supreme Court

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• The chief justice is appointed by the president after consultation with such judges of the Supreme Court and high courts as he deems necessary. 
• The other judges are appointed by president after consultation with the chief justice and such other judges of the Supreme Court and the high courts as he deems necessary. The consultation with the chief justice is obligatory in the case of appointment of a judge other than Chief justice.
  
  Controversy over Consultation
  
  The Supreme Court has given different interpretation of the word ‘consultation’ in the above provision. 
• In the First Judges case (1982), the Court held that consultation does not mean concurrence and it only implies exchange of views. 
• But, in the Second Judges case (1993), the Court reversed its earlier ruling and changed the meaning of the word consultation to concurrence. Hence, it ruled that the advice tendered by the Chief Justice of India is binding on the President in the matters of appointment of the judges of the Supreme Court. But, the Chief Justice would tender his advice on the matter after consulting two of his senior most colleagues. 
• Similarly, in the third judges case (1998), the Court opined that the consultation process to be adopted by the Chief justice of India requires ‘consultation of plurality judges’. The sole opinion of the chief justice of India does not constitute the consultation process. He should consult a collegium of four seniormost judges of the Supreme Court and even if two judges give an adverse opinion, he should not send the recommendation to the government. The court held that the recommendation made by the chief justice of India without complying with the norms and requirements of the consultation process are not binding on the government.
  
  Appointment of Chief Justice
  
  From 1950 to 1973, the practice has been to appoint the senior most judge of the Supreme Court as the chief justice of India. This established convention was violated in 1973 when A N Ray was appointed as the Chief Justice of India by superseding three senior judges.
  
  A N Ray was fourth in seniority. The three superseded judges were J M Shelat, K S Hegde and A N Grover. All the three judges resigned from the Supreme Court. They were superseded due to their judgement in Kesavananda Bharati case (1973), which was not favourable to the Government.
  
   Again in 1977, M U Beg was appointed as the chief justice of India by superseding the then seniormost judge.
  
  He was H R Khanna and he too resigned. His dissenting judgement upholding the right to life even during emergency in the ADM Jabalpur v Shivkant Shukla case (1976) was not appreciated by the Government.
  
  This discretion of the government was curtailed by the Supreme Court in the Second Judges Case (1993), in which the Supreme Court ruled that the senior most judge of the Supreme Court should alone be appointed to the office of the chief justice of India.